Discipline and Honour of Judges

By Cleofato A Coutinho
23 February 2011 21:46 IST

The suspension of two senior district level judges in the state of Goa has brought the power of superintendence of the High Court over subordinate judiciary to a sharp focus. For some time now, there is a debate going on in the country in so far as the appointment of judges and action to be taken against them in case of misconduct, gross or otherwise. There has never been much debate on the appointment and superintendence of judges of the subordinate judiciary. For a long time, it was felt that the power to superintendent the subordinate judiciary being with the High Court shall promote the independence of the Courts from executive control. The prestige of the judiciary and honour of the judges is the fulcrum of the process of superintendence.

The issue here in Goa is not in the matter of appointment but in the matter of control over the judges. The control vests in the High Court under Article 235 of the Constitution of India. Article 235 makes the High Court the sole custodian of the judiciary in the state, including in the matter of discipline. This power otherwise vests in the Full Court, i.e. all the judges are collectively and individually responsible for the discipline of judges. The Bombay High Court has passed on this responsibility to a Committee consisting of five judges and the action of the High Court in authorizing the committee of five judges to take all steps in the matter of discipline has been upheld by the Honourable Supreme Court, i.e. the committee of five judges are responsible for all actions and the matter need not go to the Full Court to which the constitution makes reference to.

There can be no doubt that discipline among judges is a matter of great sensitivity. In that view, it is imperative that the power is exercised in a fair and transparent manner. Action against the judge, subjects that judge to public ridicule and dishonour. Before any charges against judges are proved, in case any action is proposed the honour of judges get affected.

The very position of a judge is that any action affects his functioning as an impartial arbiter. In a judgement, normally there is a losing party. If the loss to a citizen is from a judge who faces disciplinary action, his confidence in the judge and the Court gets lowered. Taking disciplinary action against a judge in case of misconduct or reckless behavior would certainly be in the purview of the High Court. However, that power includes the power to protect competent judges, their prestige and honour in society.

There have been number of instances when various High Courts have taken disciplinary action against errant judges. Such actions have also been set aside by the apex court in cases the action of the High Court is seen to be a malafide move. The cases at hand in the state of Goa involve two senior judges who enjoyed a good reputation.

In both the cases the judges were placed under suspension. That there were complaints may necessitate holding of inquiries. But was it necessary to suspend them and bring them under a public perception of taint?  An inquiry may exonerate a judge and at law suspension may not carry any slur but the public perception of suspension is completely different. Even for a Government servant, a suspension would bring public dishonour and reinstatement may not bring that honour back.

A judge holds an office of public trust and confidence. Here, the shadow of 'dishonour' and 'taint' becomes more sharp, particularly since the judge is involved in deciding matters between two or more adversarial parties.

The other issue in the present case/s involves suspension even without issuing a statement of charges. That only leads to rumour mongering and the Courts/judges get tarred with the same brush as others in the society. At a time when the society faces crisis of confidence, both at a level of governance and when the entire administrative setup is seen as corrupt, it is only fair and proper that any proposed action is taken with care, caution and after taking into consideration all aspects of the matters.

Since the action of disciplinary authority is on the administrative side and the judgements of a judge are on the judicial side, the administrative scrutiny can only be in those rare cases of reckless misconduct. In case of a reckless misconduct, there can certainly be a case for disciplinary action. But whether a case involves a case of reckless misconduct would be scrutinized by the disciplinary authority on the administrative side.

One option for a suspended judge or a chargesheeted judge is to file a writ petition to the same High Court on the judicial side. In a way, the High Court which takes action on the administrative side, shall sit on judgement on its own action on the judicial side. And since the power of discipline is delegated power, the judicial side (High Court in writ petition) and the administrative side (delegated disciplinary authority) in fact becomes the same authority.

The Supreme Court has held that when the High Court takes action against the judge and the judge against whom action is taken questions the same, the High Court judge/s deciding the said matter have a split personality, i.e. a judge on the administrative side thinking and deciding differently than a judge on the judicial side. It is this split personality of the higher judiciary that gives the power to discipline the judges. Does the theory of split personality actually work? Do the judges hear writ petitions on the judicial side without getting biased with action taken by them on administrative side? It is here that the remedy of a writ petition is seen as slippery due to the fact that the disciplinary action has to be challenged before the same High Court. It may have been great if there was a mechanism created to adjudicate on matters rising out of action by the disciplinary authority.

The Goa cases have opened the issue for public debate. For a long time, Article 235 seen as the provision to protect the independence, integrity and honour of the subordinate judiciary is now seen as having been used in a manner that was not warranted. The National Judicial Commission that is planned must also address the issue of Subordinate judiciary.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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